Deeplinks Blog posts about NSA Spying

Friday evening, in a motion to dismiss Jewel v. NSA, EFF's litigation against the National Security Agency for the warrantless wiretapping of countless Americans, the Obama Administration made two deeply troubling arguments.

First, they argued, exactly as the Bush Administration did on countless occasions, that the state secrets privilege requires the court to dismiss the issue out of hand. They argue that simply allowing the case to continue "would cause exceptionally grave harm to national security." As in the past, this is a blatant ploy to dismiss the litigation without allowing the courts to consider the evidence.

Today, the Obama Administration released nine previously secret legal documents written by the Department of Justice's Office of Legal Counsel during the Bush Administration. The release includes two previously undisclosed OLC memoranda and seven previously undisclosed OLC opinions. According to the DOJ, "The two memoranda memorialized that certain legal propositions in ten OLC opinions issued between 2001 and 2003 no longer reflected the views of OLC and 'should not be treated as authoritative for any purpose.'" For example, the January 15, 2009 memo withdraws reliance on several Bush Administration opinions, including the opinion that the Fourth Amendment did not apply to domestic military operations.

Today, the Ninth Circuit Court of Appeals denied the government's appeal of Chief Judge Vaughn Walker's January 5, 2009, decision in Al-Haramain v. Obama (formerly known as Al-Haramain v. Bush - The case title changed automatically after the inauguration). The government had also filed an emergency motion to stay the case pending the appeal.

We agree with the district court that the January 5, 2009 order is not appropriate for interlocutory appeal. The government’s appeal is DISMISSED for lack of jurisdiction. The government’s motion for a stay is DENIED as moot.

This ruling is good news because it means that the warrantless wiretapping case can proceed.

A new USA Today/Gallup poll finds that a clear majority of Americans favor at least some kind of investigation into whether Bush administration officials and policies violated the law.

Respondents were asked about whether there should be a criminal investigation, an investigation by independent panel — or neither — into questions of politicization of the Justice Department, torture and warrantless wiretapping.

On the question of wiretapping, 63% support investigation of some kind. (38% prefer a criminal investigation, while 25% want investigation by an independent panel.)